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Pietermaritzburg - A judge has expressed concern about escalating medical malpractice law suits in KwaZulu-Natal, their impact on the public purse and potential to further compromise efficient provincial health services.

Judge Daya Pillay said in a reserved judgment it was “no secret” that medical malpractice suits “now occupy the space on the court roll vacated by RAF (Road Accident Fund) claims”.

RAF claims had been much abused, and a similar experience could be replicated in medical negligence suits, she warned, adding, “When commercial interests become entrenched, change will be harder to implement”, as experience with RAF matters showed.

She warned that failure to solve “institutional problems” and the drain on the health budget would further compromise the efficiency of health services in KZN.

A recurring feature in medical malpractice cases that resulted in adjournments and “extraordinary waste of legal and expert costs at the expense of the public purse” was that medical and hospital records were unavailable.

Pillay said the Health MEC should look at holding the custodians of these records (the Health Department’s employees) personally accountable for this, “if necessary on pain of discipline, criminal prosecution or both”.

Pillay found that staff at Eshowe Hospital were negligent the night Nompumelelo Madida gave birth to her baby girl, Sbahle, on January 29, 2009, and the MEC is liable to pay proven damages. The amount will be determined at a future hearing, but Madida’s initial claim was for R12 500 000.

Sbahle was born with spastic quadriplegic cerebral palsy and will be totally dependent on others for all her needs for the rest of her life.

Judge Pillay had refused to adjourn the trial at the request of the department, which claimed not to have complete medical records.

Judge Pillay said it was not explained why the Legal Services Unit could not get records from the hospital. She had refused the requested adjournment because the department’s employees were the custodians of the records.

Under the National Health Act, the employees have a statutory duty to “preserve and protect” hospital and medical records, and failure to comply opened them up to possible criminal prosecution, a fine or imprisonment. In addition, the Health Professions Council has set out guidelines for the keeping of patient records, the judge said.

Just days before this case, she had dealt with another involving a child who suffered brain damage, seizures and was mentally handicapped, allegedly due to medical negligence by state employees.

In that matter the department secured an adjournment with an order to “pay huge wasted costs” because its officials claimed not to have medical reports, only to discover days before the trial that they in fact had the reports.

The judge said a “quick survey” of claims enrolled against the Health MEC from August 2015 to February this year revealed that 58 matters were set down for pre-trial, trial and/or applications to compel the department to produce documents.

Of the 15 matters set down for trial, four were adjourned with the department paying costs, and in three of these the department agreed or was ordered to pay the whole, or a portion of the claim plus costs.

Costs had been reserved, not ordered or were undecided in 35 of the cases.

The judge said the claimants in 10 matters were born severely mentally and physically handicapped, and the claims ranged between R11 million and R20 million.

In only one case was the action withdrawn and costs tendered in favour of the department.

Judge Pillay said a “disturbingly large” number of matters were postponed, with the MEC having to pay costs.

It had not been possible to assess the amount of costs awarded, but considering that on average claimants would consult three experts and two counsel, the costs were “huge”.

She said medical malpractice cases were escalating rapidly, but warned that a “kneejerk resolution response instead of a problem-solving approach” was unlikely to yield institutional reform.

Instead, it was likely to increasingly compromise the delivery of efficient health services as the health budget was drained to meet malpractice claims and costs, the judge said.

She said long-term sustainable solutions should be found. “Litigation resolves the dispute, but not the institutional problems,” she added.

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